David Thompson v. State of Arkansas

Annotate this Case
David THOMPSON v. STATE of Arkansas

CR 98-76                                           ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 30, 1998


1.   Appeal & error -- petition for review -- standard of review. -
     - When a petition for review is granted the supreme court
     considers the case as though it were originally filed in the
     supreme court. 

2.   Motions -- denial of motion to suppress -- standard of review.
     -- When reviewing a trial court's denial of a motion to
     suppress, the supreme court makes an independent determination
     based on the totality of the circumstances and reverses only
     if the court's ruling is clearly against the preponderance of
     the evidence; in making this determination, the evidence is
     viewed in the light most favorable to the State.

3.   Search & seizure -- warrantless inventory search of vehicle --
     when allowed. -- A police officer may conduct a warrantless
     inventory search of a vehicle that is being impounded in order
     to protect an owner's property while it is in the custody of
     the police, to insure against claims of lost, stolen or
     vandalized property, and to guard the police from danger; an
     inventory search, however, may not be used by the police as a
     guise for "general rummaging" for incriminating evidence. 

4.   Search & seizure -- warrantless inventory search of vehicle --
     action must be taken in good faith and in accordance with
     standard police procedures. -- The police may impound a
     vehicle and inventory its contents only if the actions are
     taken in good faith and in accordance with standard police
     procedures or policies; these standard procedures do not have
     to be in writing, and they may be established by an officer's
     testimony during a suppression hearing; Ark. R. Crim. P. 12.6
     states that a vehicle impounded in consequence of an arrest,
     or retained in official custody for other good cause, may be
     searched at such times and to such extent as is reasonably
     necessary for safekeeping of the vehicle and its contents.

5.   Search & seizure -- inventory search of impouded vehicle --
     when permissible. --  Arkansas Rule of Criminal Procedure 12.6
     allows an officer to impound a vehicle and inventory its
     contents for "any good reason"; moreover, our case law
     establishes that it is permissible for an officer to impound
     and inventory a vehicle when the driver is physically unable
     to drive the car, and leaving it on the side of the road would
     create a safety hazard.  

6.   Search & seizure -- inventory search -- officer justified in
     impounding and completing inventory of vehicle. -- Where
     appellant was legally unable to drive his car because he did
     not have a valid driver's license, and the officer testified
     at the suppression hearing that it was a standard practice in
     his department to impound and inventory vehicles under such
     circumstances, the officer was justified in impounding
     appellant's vehicle and completing an inventory of its
     contents. 

7.   Search & seizure -- inventory search -- opening closed
     containers. -- The United States Supreme Court has held that
     the police may open containers during an inventory search if
     the department has a standard procedure allowing such conduct;
     Arkansas courts have consistently held that an officer may
     open a closed container during an inventory search when there
     is some evidence that the officer did so pursuant to a
     standard policy.  

8.   Search & seizure -- inventory search -- opening closed
     container -- standard policy required officer to open
     container. -- Where the county's policy and procedures manual
     called for officers to inventory all items in the vehicle,
     including locked or unlocked containers, it was clear that
     this standard policy required officers to open the containers
     instead of recording the unopened containers as a unit;
     because the officer was acting in accordance with a standard
     police procedure when he opened the eyeglasses case, and there
     was no evidence of bad faith, he did not exceed the
     permissible bounds of an inventory search when he opened the
     closed container.  

9.   Search & seizure -- inventory search -- appellant's Fourth
     Amendment rights not violated. -- Where the officer was in the
     midst of the inventory and exercised some dominion and control
     over the eyeglasses case before he allowed appellant to remove
     it from the wooden box located inside the hatchback area, it
     was reasonable that the officer would need to record the
     contents of the case to protect himself from a possible claim
     that he removed, damaged, or destroyed the contents before he
     handed it over to appellant; the officer's actions were in
     accordance with the standard police procedure of inventorying
     all items found in the vehicle; based on the limited facts of
     this case, the supreme court held that the officer did not
     violate appellant's Fourth Amendment rights when he opened the
     eyeglasses case.

10.  Evidence -- when suppressed evidence admissible -- convictions
     would have been affirmed in any event. -- Appellant's
     convictions could also have been affirmed pursuant to the
     inevitable discovery rule which provides that suppressed
     evidence is admissible if the State proves by a preponderance
     of the evidence that the police would have inevitably
     discovered the evidence by lawful means; here, the State
     sustained its burden as it was apparent that the officer would
     have inevitably and lawfully discovered the other drugs and
     paraphernalia in the wooden box and the leather case during
     his inventory search even if he had never opened appellant's
     eyeglasses case. 


     Appeal from Benton Circuit Court; David S. Clinger, Judge;
affirmed.
     Linda Scribner, Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Annabelle Clinton Imber, Justice.
     The appellant, David Andrew Thompson, entered a conditional
guilty plea to the crimes of possession of a controlled substance
and possession of drug paraphernalia.  The sole issue on appeal is
whether the trial court erred when it denied Thompson's motion to
suppress evidence found during an inventory search of his car. 
Finding no error, we affirm.
     On August 14, 1996, at approximately 10:00 p.m., Officer
Walter stopped Thompson's vehicle because the tail lights were not
working.  Officer Walter cited Thompson for not having a valid
driver's license or proof of insurance and issued him a warning for
the malfunctioning tail lights.  Thompson was not placed under
arrest.  Officer Walter then attempted to contact two or three of
Thompson's friends in an effort to find someone to drive Thompson
and his vehicle home.  After these efforts proved unsuccessful,
Officer Walter informed Thompson that he could not leave the car on
the side of the highway because it would create a safety hazard,
and the car could be vandalized.  Therefore, the car would have to
be impounded and its contents inventoried.  
     Thompson assisted Officer Walter in the inventory of his
vehicle.  Officer Walter briefly looked in the front seat of the
car with his flashlight and did not see "anything obvious" to
inventory.  Thompson then opened the hatchback of his car, and
assisted Officer Walter in the inventory of the items contained in
a tool box and a wooden box.  As the two men were looking through
the wooden box, Thompson asked Officer Walter if he could remove
some of the items.  Officer Walter responded in the affirmative and
advised Thompson that even the items removed from the car would
have to be inventoried.  Thompson proceeded to remove some books
and an eyeglass case.  Officer Walter told Thompson that he would
have to look inside the eyeglass case to inventory the property
contained therein and to insure that the case did not contain a
small weapon.  Thompson handed the eyeglass case to Office Walter
and exclaimed:  "I'm busted. Can I bond out tonight?"  Officer
Walter opened the eyeglass case and found several plastic bags
containing methamphetamine.
     Officer Walter immediately placed Thompson under arrest, and
secured him in the back seat of the police car.  Officer Walter
then returned to the vehicle and resumed his search.  Officer
Walter looked further into the eyeglass case and discovered drug
paraphernalia.  Officer Walter then found in the wooden box a bong
with residue, marijuana, and a razor blade.  On the driver's side
floorboard, Officer Walter found a small leather purse that
contained more drugs and paraphernalia.  
     Prior to trial, Thompson filed a motion to suppress the
evidence seized from his vehicle.  During the suppression hearing,
Officer Walter explained that it was a standard procedure in his
department to impound a vehicle and inventory its contents if the
officer could not find someone to drive the vehicle for a person
who did not possess a valid license.  Officer Walter then testified
that it was "normal procedure" to "inventory everything inside the
vehicle once the inventory is started," and that he normally
inventoried "every possession of a car."  The State then introduced
the following written policy which is contained in the Benton
County Sheriff's "Policy and Procedures" manual:

     504 Impound   If you make a physical custody arrest out
     of a vehicle, you may not leave the vehicle unattended. 
     It is up to the officer's discretion to allow someone
     else to drive the vehicle (with the owner's permission);
     however, if this is not done, it must be impounded.  . .
     .  When you impound, you will conduct an inventory.  This
     is done for the violators [sic] protection as well as
     your own and the department's.  You will inventory all
     items in the vehicle, including locked or unlocked
     containers. 

     The trial court concluded that Officer Walter was credible,
and that he reasonably decided to impound and inventory Thompson's
vehicle pursuant to the written policy which passed constitutional
muster.  Accordingly, the court denied Thompson's motion to
suppress.  Thompson then entered a conditional guilty plea to the
crimes of possession of a controlled substance and possession of
drug paraphernalia.      
     In an unpublished opinion, the Court of Appeals reversed and
remanded Thompson's conviction because it concluded that the trial
court should have suppressed the evidence seized from the
Thompson's car.  Thompson v. State, CACR97-726 (Ark. Ct. App.  Jan.
21, 1998).  We granted the State's petition for review, and
consider this case as though it were originally filed in this
court.  Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734
(1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998).
     The sole issue on appeal is whether the trial court erred when
it denied Thompson's motion to suppress the evidence seized from
his car.  When reviewing a trial court's denial of a motion to
suppress, we make an independent determination based on the
totality of the circumstances and reverse only if the court's
ruling is clearly against the preponderance of the evidence. 
Frette v. City of Springdale, supra; Travis v. State, supra.  In
making this determination, we view the evidence in the light most
favorable to the State, as the appellee. Id.
     On appeal, neither party contests the legality of the traffic
stop.  Instead, Thompson argues that Officer Walter had no legal
basis for performing the inventory search, or, in the alternative,
that he exceeded the scope of a permissible inventory search when
he looked inside the eyeglass case.  We find no merit to these
arguments.
     It is well settled that police officers may conduct a
warrantless inventory search of a vehicle that is being impounded
in order to "protect an owner's property while it is in the custody
of the police, to insure against claims of lost, stolen or
vandalized property, and to guard the police from danger." 
Colorado v. Bertine, 479 U.S. 367 (1987); see also Welch v. State,
330 Ark. 158, 955 S.W.2d 181 (1997).  An inventory search, however,
may not be used by the police as a guise for "general rummaging"
for incriminating evidence.  Florida v. Wells, 495 U.S. 1 (1990);
Welch v. State, supra.  Hence, the police may impound a vehicle and
inventory its contents only if the actions are taken in good faith
and in accordance with standard police procedures or policies.  See
Colorado v. Bertine, supra; Florida v. Wells, supra; Welch v.
State, supra.  In Welch v. State, supra, we clarified that theses
standard procedures do not have to be in writing, and that they may
be established by an officer's testimony during a suppression
hearing.  In accordance with these principles, we have promulgated
Ark. R. Crim. P. 12.6, which states that:
     A vehicle impounded in consequence of an arrest, or
     retained in official custody for other good cause, may be
     searched at such times and to such extent as is
     reasonably necessary for safekeeping of the vehicle and
     its contents.
(Emphasis added.)  
                          I.  No Arrest
     First, Thompson argues that Officer Walter did not have the
authority to perform an inventory search because Benton County
Policy 504 refers only to inventories of vehicles that are
impounded pursuant to an arrest.  However, Ark. R. Crim. P. 12.6,
which is broader than Policy 504, allows an officer to impound a
vehicle and inventory its contents for "any good reason." 
Moreover, our case law establishes that it is permissible for an
officer to impound and inventory a vehicle when the driver is
physically unable to drive the car, and leaving it on the side of
the road would create a safety hazard.  Asher v. State, 303 Ark.
202, 795 S.W.2d 350 (1990); Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992).  The only difference between the case at hand,
and Asher and Kirk is that Thompson was legally, not physically,
"unable" to drive his car because he did not have a valid driver's
license.  Finally, Officer Walter testified at the suppression
hearing that it was a standard practice in his department to
impound and inventory vehicles under such circumstances.  For these
reasons, we hold that Officer Walter was justified in impounding
Thompson's vehicle and completing an inventory of its contents.   

                 II.  Opening Closed Containers 
     The next issue is whether Officer Walter exceeded the bounds
of a permissible inventory search when he opened Thompson's
eyeglass case.  In Florida v. Wells, 495 U.S. 1 (1990), the United
States Supreme Court held that the police may open containers
during an inventory search if the department has a standard
procedure allowing such conduct.  In accordance with Florida v.
Wells, supra, the Arkansas courts have consistently held that an
officer may open a closed container during an inventory search when
there is some evidence that the officer did so pursuant to a
standard policy.  Welch v. State, 330 Ark. 158, 955 S.W.2d 181
(1997); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986); Kirk
v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992); Folly v. State,
28 Ark. App. 98, 771 S.W.2d 306 (1989). 
     As previously mentioned, Policy 504 declares that:  "You will
inventory all items in the vehicle, including locked or unlocked
containers."  By referring to locked and unlocked containers, it is
clear that this standard policy requires officers to open the
containers instead of recording the unopened containers as a unit. 
Because Officer Walter was acting in accordance with a standard
police procedure when he opened the eyeglass case, and there was no
evidence of bad faith, we hold  that he did not exceed the
permissible bounds of an inventory search when he opened the closed
container.  
                III.  Items Removed from the Car
     This conclusion, however, does not end our analysis because
Thompson further argues that once he removed the eyeglass case from
the vehicle, it was no longer subject to being inventoried.  We
disagree.  As previously explained, an inventory search is
conducted for the dual purpose of protecting the owner's property
and the police from false claims of theft or vandalism.  See
Colorado v. Bertine, supra; Welch v. State, supra.  Accordingly,
Ark. R. Crim. P. 12.6 provides that an officer may conduct the
inventory to the extent "reasonably necessary for safekeeping of
the vehicle and its contents," and Policy 504 declares that
officers "will inventory all items in the vehicle."
      In the case before us today, Officer Walter was in the midst
of the inventory and exercised some dominion and control over the
eyeglass case before he allowed Thompson to remove it from the
wooden box located inside the hatchback area.  Under such
circumstances, we find it reasonable that Officer Walter would need
to record the contents of the case to protect himself from a
possible claim that he removed, damaged, or destroyed the contents
before he handed it over to Thompson.  Moreover, Officer Walter's
actions were in accordance with the standard police procedure of
inventorying all items found in the vehicle.  Based on the limited
facts of this case, we hold that Officer Walter did not violate
Thompson's Fourth Amendment rights when he opened the eyeglass
case.
     Even if we had concluded otherwise, Thompson's convictions
could have been affirmed pursuant to the inevitable discovery rule
which provides that suppressed evidence is admissible if the State
proves by a preponderance of the evidence that the police would
have inevitably discovered the evidence by lawful means.  Nix v.
Williams, 467 U.S 431 (1984); Brunson v. State, 296 Ark. 220, 753 S.W.2d 859 (1988); Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895
(1988).  We think that the State sustained its burden in this case
as it is apparent that Officer Walter would have inevitably and
lawfully discovered the other drugs and paraphernalia in the wooden
box and the leather case during his inventory search even if he had
never opened Thompson's eyeglass 
case. 
     For the forgoing reasons, the trial court's ruling is
affirmed.